VA AG Cuccinelli: Governor’s power has limits

By Kathryn Watson | Watchdog.org, Virginia Bureau

ALEXANDRIA, Va. — Does the governor of Virginia have authority to suspend regulation? Attorney General Ken Cuccinelli says no.

But it’s a bit more intricate than that.

While running for governor, Democrat Terry McAuliffe said he would provide a “guidance option” for abortion clinics to opt out of stricter health and safety regulations, regulations passed by the General Assembly in 2011 and approved by the Virginia Board of Health in 2013. State officials said there was no such option.

But Republican Delegate Bob Marshall wanted to make sure governor-elect McAuliffe doesn’t cut corners, comparing McAuliffe’s opt-out claim to Obama delaying of multiple portions of his signature health law.

“To me, he’s trying to amend the law,” Marshall told Watchdog.org. “And he doesn’t have legislative powers. It’s just like what Obama does. He thinks he can tell HHS (Health and Human Services) to suspend a portion of the law.”

“If he makes campaign promises, that’s one thing. But there is a constitutional procedure for doing them,” Marshall said.

So, Marshall formally asked Republican Cuccinelli — who lost to McAuliffe in the gubernatorial race by just a couple of points in November — if a Virginia governor has the power to suspend a regulation adopted by statutory mandate.

Cuccinelli said no.

“It is my opinion that, while the governor has a significant role to play in the formulation of regulations promulgated by executive branch agencies, the Virginia Constitution prohibits the governor from unilaterally suspending the operation of regulations that have the force of law,” Cuccinelli’s official opinion, dated Jan. 3, reads.

That application goes for all regulations with the force of law behind them, “regardless” of the subject matter — including the new clinic regulations, Cuccinelli said in a footnote. Cuccinelli detailed the historical and legal basis for his conclusion in his six-page opinion.

While the attorney general plays an independent role, he’s still tied to the abortion clinic matter.

As a state senator, Cuccinelli drafted similar legislation — although not the ultimately successful bill — requiring hospital-like health and safety standards for abortion clinics. As attorney general, he fought to make sure the board approved those regulations.

Still, the attorney general’s opinion holds — the incoming governor can’t do whatever he wants when it comes to suspending regulations.

Republicans protested similarly when they said McAuliffe wants to legislate by executive order.

“He doesn’t have the authority to suspend that law,” Marshall said. “End of discussion.”

And that, Marshall said, is something Democrats such as Mark Herring, attorney general-elect, should stand behind, too.

Otherwise, whoever is in the Executive Mansion — Democrat or Republican — can make and eliminate laws as he pleases.

— Kathryn Watson is an investigative reporter for Watchdog.org, and can be reached at kwatson@watchdog.org.

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